One of the longest battles in environmental law concerns Consolidated Edison's 10-year effort to build a pumped-storage hydroelectric generating facility on the Hudson River at Storm King Mountain. Fearing damage to the Storm King area, environmentalists managed through protracted litigation to delay the project from 1965 until the spring of 1974, when Consolidated Edison, convinced that all legal hurdles were passed, began construction of the $537-million facility. By May 8, the future of the plant was once again in doubt, as the Second Circuit Court of Appeals, in its third decision in the case, ordered the Federal Power Commission to reconsider the project in light of new evidence indicating that the potential damage to fish eggs and larvae in the river was far greater than previously believed.¹

The project would use electricity generated by Consolidated Edison's New York City plants during slack periods to pump water from the Hudson to a reservoir above the river. During times of peak demand, stored water would be released to drive turbine electrical generators. Possible environmental harm from the large quantities of water withdrawn from the river, the increased burning of fossil fuels in New York City during slack periods, the establishment of a wide corridor for aboveground transmission lines, and the expected disruption of an area of unique natural beauty with sites of significant historic value, led to legal challenges to the project by conservationist organizations, local townships, and the city of New York. The appeals court's first decision, in 1965 (Scenic Hudson I),² found that the Federal Power Commission had failed to comply with the Federal Power Act in that it had neither sufficiently considered alternatives to the proposed project nor evaluated adequately the environmental harm that could result to the area. The court remanded the case to the FPC for new proceedings. Among other factors that the Commission was ordered to consider was the potential danger to the fish living in the river and to those that use the river waters as a spawning ground.